AMAD Committee Report

The Liberal Government’s Failures Respecting Medical Assistance in Dying: A Call for Caution Against Repeating Past Mistakes

Special Joint Committee on Medical Assistance in Dying: Dissenting Report

This Dissenting Report reflects the views of the Conservative Senator and Members of Parliament who serve on the Special Joint Committee on Medical Assistance in Dying (the “Committee”): Senator the Honourable Yonah Martin (Senator, British Columbia), M.P. Michael Cooper (Co-Vice Chair of the Committee, St. Albert – Edmonton), M.P. Dominique Vien (Bellechasse – Les Etchemins – Lévis), and M.P. Dr. Stephen Ellis (Cumberland – Colchester).

Introduction

We wish to acknowledge that Medical Assistance in Dying (“MAID”) is a complex and deeply personal issue about which reasonable and well-intentioned people can disagree.

However, there are serious issues with Canada’s MAID regime and vulnerable persons are being put at risk because of the Liberal government’s failures. Regardless of one’s perspective on MAID in principle, these issues cannot be ignored.

After eight years of growing poverty and desperation under Justin Trudeau, Canadians are turning to MAID because they can't afford to live a dignified life.[1] There are several reported cases of potential abuse, non-compliance with MAID safeguards[2], and instances of Canadians seeking MAID for reasons such as poverty and a lack of access to adequate housing.[3] There have been at least six reported instances of Veterans improperly being offered MAID by Veterans Affairs Canada employees.[4] 

Reports of abuse and non-compliance have garnered alarm across Canada and internationally, including from the UN Special Rapporteur on the rights of persons with disabilities.[5] After eight years of failure, the Liberals cannot be trusted to stand up for the most vulnerable and their loved ones.

We are offering this Dissenting Report because we cannot endorse every recommendation that the Committee put forward in the Report. We outline our objections and additional considerations in the following sections, broken down by each topic that the Committee studied. 

MAID Where a Mental Disorder is the Sole Underlying Medical Condition

Conservatives raised significant concerns with the Liberal government’s plan to expand MAID to cases where a mental disorder is the sole underlying medical condition (“MAID MD-SUMC”) in our Dissenting Interim Report, The Legal and Clinical Problems Respecting Medical Assistance in Dying in Cases Where a Mental Disorder Is the Sole Underlying Medical Condition (the “Dissenting Interim Report”). These include but are not limited to the following:

1. The lack of meaningful study and consultation regarding the expansion of MAID to include MAID MD-SUMC;
2. The difficulty in predicting irremediability in cases where a mental disorder is the sole underlying medical condition;
3. Clinical concerns and inherent risks of MAID MD-SUMC to vulnerable persons; and
4. General concerns with the Expert Panel and Expert Panel Report.

Since these concerns have been explained in detail in the Dissenting Interim Report, we will not elaborate on them in this Dissenting Report. We note, however, that our concerns have not been allayed by the remaining testimony that the Committee heard.

We further note that since our Dissenting Interim Report was tabled, the Association of Chairs of Psychiatry in Canada, which includes the heads of psychiatry departments at all 17 medical schools issued a statement raising some of the same concerns in our report and called on the Liberals to extend the sunset clause for MAID MD-SUMC.[6]

In an admission of failure, the Liberals introduced 11^th hour legislation, Bill C-39, to extend the sunset clause by one year until March 17, 2024. 

Back in June 2022, when our Dissenting Interim Report was tabled, we called on the Liberals to put a halt on this expansion. This was based on a large body of evidence at the Committee from experts, including leading psychiatrists, who said MAID MD-SUMC cannot be implemented safely. The Liberals ignored our call and refused to acknowledge the evidence of experts. Then, only on February 2, 2023, with 17 sitting days to shepherd legislation through both the House of Commons and the Senate before the expiration of the sunset clause, did the Liberals finally introduce Bill C-39.  This last-minute legislation illustrates the Liberals shambolic approach to MAID MD-SUMC.

All of this could have been avoided had the Liberals put evidence ahead of ideology, before initiating this radical expansion of MAID. Instead, the Liberals accepted a Senate amendment to Bill C-7, setting in motion the implementation of MAID MD-SUMC with an arbitrary deadline of March 17, 2023. This decision was made before any meaningful study and consultation took place. In short, the Liberals embarked on this expansion without first determining whether it could be implemented safely. 

With Bill C-39, the Liberals are setting a new arbitrary deadline of March 17, 2024.  Given the incompetent and reckless record of the Liberals on this issue, we have no confidence in them to get it right. Offering MAID to those who are suffering from mental illness is likely to be problematic a year from now. There is no evidence to indicate that the difficulties around predicting irremediability, the other clinical concerns, and the inherent risks to vulnerable persons will be resolved by then. A future arbitrary deadline is not an acceptable solution to the problem the Liberal government has created. 

We also note that the Liberals have failed to deliver on their 2021 election platform commitment to dedicate $4.5 Billion to the Canada Mental Health Transfer. No allocation of funds was dedicated in either Budget 2022 or the 2022 Fall Economic Statement.[7] This inaction could not come at a worse time, with nearly a quarter of Canadian adults reporting that they have unmet mental health needs.[8] During the 2021 election campaign, Justin Trudeau stated that mental health is a “priority” of his government. Like much of what Justin Trudeau says, these were empty words.[9]

Mature Minors

Conservatives do not support MAID for mature minors at this time.

To begin with, there are “significant knowledge gaps” respecting mature minors and MAID.[10] This was the conclusion of the 2018 Council of Canadian Academies Report: The State of Knowledge of Medical Assistance in Dying for Mature Minors (the “CCA Report on Mature Minors”). 

Knowledge gaps identified include: (1) “a paucity of evidence” capturing the voices of youth and families that would be most affected by MAID for mature minors; (2) little available evidence on the views of mature minors perceived as particularly vulnerable, including those with disabilities, Indigenous youth, and those in the child welfare system; (3) limited clinical studies focused on health issues, including in respect of end-of-life care affecting youth, and even fewer of youth within the age range of what is likely a mature minor; and (4) data gaps across Canada for MAID, including data on the youngest patients who have requested MAID.[11] 

It is not evident that these and other knowledge gaps have been closed. Some of these knowledge gaps were specifically identified by witnesses who appeared before the Committee, including the lack of consultation with youth.[12] 

These knowledge gaps are compounded by the fact that mature minors may access MAID in only three jurisdictions in the world, namely: Colombia, Belgium, and the Netherlands, each with few cases of mature minors receiving MAID. The limited experience with MAID for mature minors in other jurisdictions, and the dearth of international data applicable in the Canadian context underscores that significant work remains to close these knowledge gaps.[13]

Also of significance, issues around the decision-making capacity of mature minors remain unresolved. The CCA Report on Mature Minors notes that decisions with increased risk or complexity incite greater concern over the ability of minors to appreciate the consequences of their choice and make it voluntarily.[14] Arguably, there is not a weightier health decision than MAID, given the irreversibility of the procedure.

Moreover, several witnesses noted that the frontal lobe of the brain, which plays a critical role in balancing risks and rewards and decision-making, is not fully developed until well into adulthood. This raises questions about the appropriateness of MAID for mature minors.[15] As Dr. Maria Alisha Montes, a clinical associate professor of pediatrics, said:

“I would argue that MAID for mature minors carries the highest amount of risk, as the consequence is death. It's irreversible. We need to ask ourselves if we should be legalizing this for mature minors when biology shows us that the ability to balance risks and rewards is one of the last areas of the brain to mature.”

There are also practical challenges with assessing the capacity of mature minors. Dr. Timothy Ehmann, a child and adolescent psychiatrist, testified that a standardized, reliable assessment for the capacity and competence of minors does not exist, and that unaided competence judgments, even from “seasoned and otherwise skilled physicians” are unreliable.[16] Dr. Ehmann’s testimony is supported by the CCA Report on Mature Minors, which observed that “no standardized approaches are available to assess minors’ capacity or psychological maturity” and indicated: “the mere fact that somebody does something frequently, does not necessarily mean that they do it well.”[17] Difficulties around accurately assessing the capacity of a minor, and the consequent risk of erroneous capacity findings, is particularly concerning in the context of MAID, which results in the termination of life.

So long as these issues remain unresolved, it would be irresponsible for the Liberal government to move ahead with any expansion of MAID for mature minors. Minors are a uniquely vulnerable group, having regard for their level of cognitive development. It must be emphasized that accessing MAID is arguably the highest stakes medical decision an individual can make. The government needs to further study the issue and consult directly with minors. There must also be clear evidence and a general professional consensus that it can be implemented safely. Based upon the evidence before the Committee, and the CCA Report on Mature Minors, such evidence and consensus are lacking.

Advance Requests 

Unlike the Liberals, Conservatives welcome varying views on matters of conscience. Advance requests for MAID (“ARs”) are a complex and deeply personal issue. There is a diversity of opinion from members of the Conservative caucus on ARs, including from Conservative members of the Committee. We wish to share our varying observations and conclusions in this section. 

Observations of Senator the Honourable Yonah Martin, M.P. Michael Cooper, and M.P. Dr. Stephen Ellis

The above-noted members of the Committee do not support ARs. Based on the evidence at the Committee, we believe that there are significant legal, ethical, and practical challenges with ARs.

The Supreme Court of Canada in the Carter decision emphasized multiple times that a person requesting MAID must clearly consent.[18] This necessarily implies contemporaneous consent. Accordingly, ARs appear to fall outside of the parameters set by the Supreme Court.[19]

As acknowledged by the Council of Canadian Academies report titled The State of Knowledge on Advance Requests for Medical Assistance in Dying (the “CCA Report on ARs”): “[t]he primary risk involved in ARs for MAID is the risk that a person will receive an assisted death against their wishes.”[20] This risk is supported by Health Canada data.  Health Canada’s First, Second, and Third Annual Reports on Medical Assistance in Dying in Canada reveal that on average, approximately 20% of patients who withdrew their request for MAID did so immediately before the provision of MAID (20.2% in 2019, 22% in 2020, 12.1% in 2021).[21]  

Moreover, ARs cannot deliver the fully informed consent of the patient, because of the difficulty of predicting future preferences, capacities, and circumstances.[22] As Dr. Romayne Gallagher, a clinical professor in palliative medicine, indicated:

“…medical and social science literature reminds us that people are poor at anticipating what life would be like with a life-changing illness or disability.  People adapt to illness and disability and adjust their needs for a decent quality of life. Many medical conditions have long and unpredictable courses.”[23]

Dr. Gallagher further stated that decades of research into effective forecasting reveals that people tend to think that the future will always be worse than it turns out to be.[24]

Dr. Alice Maria Chung, a geriatrician, indicated that ARs are ethically problematic in that patients, who for example are living with end-stage dementia, would be unable to withdraw their consent. Dr. Chung noted that a patient’s ability to withdraw their consent is essential to informed consent.[25]  

In addition to the practical difficulties of a patient predicting the future, there are also difficulties in accurately interpreting ARs. As the CCA Report on ARs states: “the main issue with ARs for MAID is the uncertainty faced by those responsible for following the request when it comes to gauging when or whether the patient desires an assisted death.”[26] 

Physicians are unable to reaffirm consent.[27] There is subjectivity and inconsistency in how ARs are interpreted and how they are applied.[28] These difficulties are compounded by the fact assessing someone’s suffering is highly subjective, and there is extensive clinical uncertainty about how this can be done .[29] Moreover, it is unclear how physicians and MAID assessors can determine that a person is suffering intolerably if they are unable to communicate their level of suffering. It is equally unclear how it is possible to resolve this question.

There are also legitimate concerns that ARs will lead to abuse, discriminate against persons with cognitive impairment, and are inconsistent with the International Convention on the Rights of Persons with Disabilities, which recognizes the inherent legal capacity of persons with cognitive disabilities, and implies a duty to enable expressions of current interest.[30]

As the CCA Report on ARs concludes:

“The practical application of [ARs], the details of professional judgments in these cases, the societal impacts of allowing [ARs], and the applicability of this evidence to the Canadian context remain significant knowledge gaps.” [emphasis added]

Based on the evidence at the Committee, and having regard for the foregoing, it is evident that much work is left to do before consideration can appropriately be given to expanding MAID to include ARs.

Observations of M.P. Dominique Vien

Ms. Dominique Vien supports recommendations on advance requests. For Ms. Vien, it seems clear that a large majority of the population supports advance requests for medical assistance in dying in specific cases of diagnosis of degenerative diseases, for example.

In Quebec, the Special Commission on the evolution of the law concerning end-of-life care, in its report adopted unanimously and tabled in the National Assembly in December 2021, made the following recommendation:

“The Commission recommends that a person of full age and capacity be permitted to make an advance request for medical assistance in dying following a diagnosis of a serious and incurable illness leading to incapacity.”[31]

This recommendation was included in Bill 38 which could not be passed due to the 2022 provincial election.

The implementation of advance requests to receive medical assistance in dying should be framed and supported by safeguards and very specific criteria on which applicants and providers could base themselves.

The State of Palliative Care in Canada

We are generally satisfied with the way the evidence respecting palliative care in Canada is captured in the Final Report. We support each recommendation respecting palliative care.

However, we wish to underscore the failure of the Liberal government to deliver upon commitments to improve access to quality palliative care across Canada since MAID became legal. Although the Liberal government committed $6 billion to palliative care in Budget 2018, only a small percentage of that funding has gone out the door. 

Regardless of funding, seven years after MAID became legal in Canada, under the Liberals, there has been no meaningful improvement in the state of palliative care. Only 30% to 50% of Canadians have access to palliative care of an unknown quality, and only approximately 15% to 25% of Canadians have access to specialist palliative care to address complex issues.[32]

Although the latest Health Canada data indicates that 80.7% of MAID recipients received palliative care, nearly one in five MAID recipients did not.[33] A closer look at the data reveals that at least 40% of those who received MAID had little or no palliative care, with 21% receiving it in the last two weeks and 18% who received it less than four weeks prior to MAID.[34] This is concerning given that early palliative care can alleviate suffering before it comes irremediable.[35]

Limited or poor palliative care may be a factor in driving Canadians to opt for MAID.[36]  However, there is limited data available regarding the duration and quality of palliative care received by persons who access MAID.[37] We therefore recommend that data collection respecting MAID and palliative care be expanded in scope and include the quality and duration of palliative care for those who access MAID.

Having access to quality palliative care is especially critical now that MAID is legal. Early on, following the Carter decision, the importance of palliative care in the context of MAID was recognized in the Final Report of the External Panel on Options for a Legislative Response to Carter v. Canada, which observed that : “a request for physician-assisted death cannot be truly voluntary if the option of proper palliative care is not available alleviate a person’s suffering.”[38] As Dr. David Henderson, Senior Medical Director, Integrated Palliative Care, Nova Scotia Health, observed:

“If the majority of society feels…that every person can end their life at their choosing, then so be it. However, we are still responsible for protecting the vulnerable and ensuring that people have a choice that includes access to palliative care…and a health care system that allows for dignity for all, not just those who want to end their life.”

Since the passage of Bill C-14, the original MAID legislation, the Liberals have prioritized the rapid expansion of MAID, while neglecting palliative care. Consequently, they are denying many Canadians who are suffering from meaningful and truly autonomous end-of-life options.

Pediatric Palliative Care

Access to pediatric palliative care is sorely lacking in Canada[39]. As noted in the CCA Report on Mature Minors, increasing the availability of pediatric palliative care is a safeguard against minors choosing MAID because of a lack of end-of-life care options[40].  We therefore call on the Liberal government to prioritize improving access to pediatric palliative care.

Protections for Persons with Disabilities

There is a disturbing trend of reports of persons applying for MAID who are motivated by socio-economic suffering.[41] That is why we support the Committee’s recommendations calling on the Liberal government to provide more support and better access to care to Canadians who live with disabilities. No Canadian should feel that MAID is their only option because they are unable to receive the care and support that they need and deserve.

Having said that, we are disappointed that the Committee, in its study, did not undertake a comprehensive retrospective review of the provisions of the Criminal Code relating to MAID, including the adequacy of existing safeguards. We submit that this was part of the Committee’s mandate pursuant to clause 5(1) of Bill C-7. Instead, the Committee generally focused on the prospective expansion of the MAID regime.  This was a missed opportunity, especially at a time when there is growing concern about the effectiveness and enforcement of existing safeguards.

Nonetheless, a consistent theme among members of the disability rights community and their advocates who appeared before the Committee is the need to strengthen safeguards, particularly in Track Two cases.[42] Several witnesses expressed the view that the only safeguard that can protect persons with disabilities from wrongful death is to restore the “reasonably foreseeable natural death” eligibility criteria.[43] We therefore recommend that the Government of Canada strike an expert panel to review the adequacy of existing safeguards. The panel should include impacted groups and their advocates and be tasked with determining if additional safeguards are necessary and report its findings to the relevant Ministers. The report should be used to inform future MAID legislation.

It is important to note that the overwhelming majority of disability rights organizations in Canada, since the initial debates on Bill C-7, strongly oppose Track Two MAID.[44] It is disturbing that the Liberal government has ignored these voices and failed to address their concerns.

Conclusion

The Liberals’ rushed and reckless approach to Canada’s MAID regime has put the lives of vulnerable Canadians at risk. We caution the Liberal government against repeating the mistakes they made concerning MAID MD-SUMC. MAID policy must be grounded in evidence, consultation with impacted groups, and with serious consideration given to protecting the vulnerable.

Respectfully submitted,

The Honourable Yonah Martin, Senator

British Columbia

Michael Cooper, M.P.

St. Albert – Edmonton

Dr. Stephen Ellis, M.P.

Cumberland – Colchester

Dominique Vien, M.P.

Bellechasse – Les Etchemins – Lévis